Probate Avoidance

Probate isn’t inevitable. In fact, many people avoid probate by owning assets jointly or naming payable on death beneficiaries. However, the nature of your assets and the complexity of your estate goals may necessitate more involved planning. Though in some instances probate isn’t a concern for our clients, most of our clients desire the smooth and quick transition of their assets after death. Probate avoidance may result in lower taxes for your estate and less expense to beneficiaries but most importantly it simplifies the transfer of assets to grieving loved ones.

One of the most common estate planning tools utilized to avoid probate is the establishment of a Simple Revocable Trust (SRT). When creating a SRT, the trust maker, or grantor, is often 1) the creator of the trust, 2) the lifetime beneficiary of the trust and 3) the initial trustee. Because the trust is managed by a trustee and the assets placed in the trust are no longer individually owned by the grantor, when the grantor dies, the trust remains. The terms of the revocable trust become irrevocable. A successor trustee named by the original grantor continues to manage the trust and transfers the assets according to the grantor’s plans. This transfer of assets does not generally require assistance from the courts and probate avoidance is achieved. To ensure a grantor’s assets pass through their trust, assets may be retitled in the name of the trust or designated as transferable upon death to the trustee of the trust. It is important you meet with an elder law attorney to discuss whether a SRT is right for your estate planning needs. The attorneys with Finley Law LLC are thorough and thoughtful and will help you determine if this probate avoidance tool would work for you.

An Enhanced Life Estate Deed, commonly referred to as a “Ladybird Deed,” is a popular option for transferring real estate upon death without the involvement of the courts. This type of probate avoidance measure is akin to naming a pay on death beneficiary for a bank account, primarily because it operates in the same way. When a person signs an Enhanced Life Estate Deed, they are retaining their ability to do anything with the property they desire during their lifetime, including selling or giving it away, without needing permission from the beneficiaries they named in the deed. The beneficiaries in the deed are referred to as “remaindermen.” The grantor in the deed is the life estate tenant. Upon the life estate tenant’s death, the property transfers automatically to the remaindermen. A discussion should be had with an elder law attorney regarding the potential pros and cons of utilizing this probate avoidance strategy. The attorneys with Finley Law LLC are well versed in the complexities of these deeds and will help you in determining if a Ladybird Deed is right for you.